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HomeMy WebLinkAbout1989-1720.Ward.92-05-15 ONTAR;O EMPLOYES OE LA COURONNE CROWN EMPLOYEES OE L'ONTARIO GRIEVANCE C,OMMISSION DE SETrLEMENT REGLEMENT ' BOARD DES GRIEFS I80 {~UNOAS STREET WEST, SUITE 21~0, TORONTO, ONTARIO· MSG IZ8 TELE.°'HOIqE/TEL_EP~ONE: (4 ~j 32~- tSO. RUE DU~OAS OUEST, ~UREAU 2~. TORONTO (ONTARIOL MEG IZ8 FACStt~ILE,'TE[ECOPlE : ~ ~6] 326- [720/89 ~ [72[/89 Undo~ Be~o~o BB~BN O~S~ (Ma~d) ' · ~ ovo~ The C~o~ ~n R~h~ o~ Ontario BEFOg: N. Dissanayake Vice-Chai~erson T. Browes-Bugden Me~er G~, Milley' Me~er POR'THE K.' Hughes GRIEVOR Counsel Cavalluzzo, Hayes & Shilton Barristers & Solicitors · 0R ~ R. Dunsmore P/~PLOYE~ Counsel Hicks, Morley, Hamilton, Stewart & Storie Barristers & Solicitors HNARING May 14, 1990 September 11, 12, 25, 1990 October 1, 2, 3, 15, 16, 1990 November 7, 24, 1990 December 21, 1990 2 DECISION' These are two grievances filed by ~r. Scouter Ward, a Race Relations Consultant (RRC) employed by the Ministry of Citizenship. The first grievance dated October 25, 1989 relates to two letters of discipline and reads, "I grieve that I have been disciplined without just cause by letters dated October 10, 1989 and October 23, 1989 .~ from Raj chopra, Supervisor~ Metro Region,.Race Relations Directorate." The second grievance dated N~vember 10, 1989, relates to his removal from the RRC position in Hamilton, Ontario and re- assignment effective October 30, 1989, as a Multicultural Progra~me Consultant in Toronto. That grievance reads "I grieve that I have been disciplined without just-cause". The hearing commenced on May 14, !990 and.consumed a total of 12 days to complete the evidence. Following that, the Board-received written submissions from the parties. In the management hierarchy, below the Minister and the Deputy Minister, was Mr. Dan McIntyre, Race Relations Commissioner (later changed to Executive Coordinator) who was directly responsible for the Race Relations Directorate. Reporting to Mr. McIntyre were two Supervisors. The first, Ms. Raj Chopra was based in Toronto and was responsible for the directorate's operations in the greater Toronto area. The second supervisor, Mr. Eric Whist was also based in Toronto 3 and was ~esponsible for the 7.other regional offices in the Province, including the South-East Region office in Hamilton. In October 1989 there were 7 RRC's in the greate~ Toronto area reporting to Ms. Chopra. Each of ~he other 7 areas had one RRC. They reported t° Mr: Whist. The RRC's basic function was to work with minority groups (eg. ethnic organizations) and other community organizations (eg. Municipality Race Relations Committees, School Boards) providing assistance and guidance to develop race relations policies, and to-mediate and diffuse racial conflicts in their region. Their role was that of educating and. mediating rather than enforcing government policy. .Due to the nature of the job a RRC had to spend the majority of his or her.time in "~he field" working with client groups. .Mr. Ward joined the government service in 1985 as a Human Rights officer with the Race Relations Division of the Ministry of Labour. In 1987 the Ministry of Citizenship took over responsibility for race relations in the province under the Race Relations Directorate. At the time Mr. Ward also moved to that Ministry in the. capacity of a' Race Relations Consultant. Mr. Ward was based in Hamilton and was the RRC for the South East Region of the province. In August 1988 Mr. Ward applied successfully for a secondment to the Ministry of the A.G.. Due to reasons not relevant, he did not complete the secondment period. He could not return to his Hamilton 4 position because a contract employee Mr. Saleem Yacoub, had been hired for that position until March 1989. Accordingly, in December 1988, supervisor Mr. Eric Whist enlisted Mr. Ward to assist him in organizing a provindial conference for municipal race relations. After this conference was successfully completed, in February 1989Mr. Ward was assigned to the Toronto office as a RRC to work with seven municipal clients. In this position he Worked under the supervision of Ms. Raj Chopra. He remained there until his reassignment as a multicultural consultant in October, 1989, which is the subject of the second grievance. The First Grievance a) The discipline letter dated O~tober 10, 1989: Ms. Raj Chopra, Supervisor of the Central Metro Unit issued the following letter dated October 10-, 1989 which was titled "letter of. reprimand". This is to inform yo9 that your actions in regard to leaving a draft of the Invitation Summary, attached to the Brampton Mayor's letter and list of community organizations were inappropriate, unacceptable and displayed extremely poor judgement. In doing so you failed to follow established policies/procedures and discharge your duties in a professional and responsible manner. The result of your actions caused embarrassment to the Directorate and has seriously damaged our credibility and reputation within the Ministry. Your action is surprising in view of your experience and knowledge of protocol. I cannot ignore this instance and the severity of the situation causes me to issue' a written reprimand. Further to our previous discussion your duties will be confined to the Toronto office. Effective October 6, 1989 you will terminate all contact with client groups until further notice. We heard extensive evidence as to the events (herein- after referred to as "The Brampton incident") which led to this letter. The evidence indicates that there was a need to- temporarily fill a RRC position in Toronto. During discussions between Ms. Chopra .and Mr. Whist, the latter informed that Mr.' Ward was available and recommended that Ms. Chopra .obtain his services on a secondment. Mr. Ward started in Toronto in March 1989. His role was to act .as a RRC to a number of Municipal race relati'ons committees and to assist these municipalities in their race relations activities. one of the municipalities to be assisted by Mr. Ward was Brampton. The evidende indicates"~hat for some time, th~ Directorate had attempted to encourage Brampton to establish a race relations committee. However, the mayor, Mr. Ken Whillans felt that it was unnecessary. Following a successful race relations conference, however, the mayor appeared to change his mind and in February 1989 sought the assistance of the Race Relations Directorate to establish a race relations committee in Brampton. Ms. Chopra assigned Mr.' Ward to p~ovide that assistance. 6 Ms. Chopra testified that on October 4, 1989~ Mr. Ward came ~nto her office around 10 a.m.. She was surprised to see him because his normal start time was ll:00 a.m.. Mr. Ward showed her a number of papers. These had to do with an invitation from Mayor Whillans to the Minister of Citizenship, Mr. Robert Wong, to be key-note speaker at a breakfast meeting on October 31, 1989 to "kick-off" the Brampton R.R. committee. The package included the letter of invitation from the mayor to the minister, a list of some 100 invitees (community leaders and organizations and the media), a ministry form called "invitation summary" filled out by Mr. Ward, and a printed invitation card showing the Minister as the keynote speaker. Mr.~Ward informed Ms. Chopra that because of the urgency of the s~tuation, he came in early and left the package in the .Minister's office. Ms. Chopra became very upset when she heard this because she felt that Mr.. ward~had failed to follow the Directorate's "protocol". When Ms. Chopra read the material, she was'further distressed because it was apparent that invitation cards had been already printed on the assumption that the Minister will attend, although the Minister had no~ agreed to .do so. In addition, Ms. Chopra, took offence to a reference in the invitation ~summary sheet (prepared .by Mr. Ward) to the Minister as "Bob". She felt that it was disrespectful on Mr. Ward's part to refer to the Minister by first name. Ms. Chopra immediately called the Minister's office and tried to retrieve the material, but was 7 told that it was too late. It should be noted that ultimately the "kick-off" meeting for October 31, 1989 had to be ~ cancelled because the Minister did not accept the invitation, and the Brampton Committee felt~that the meeting, should not proceed without the Minister. The letter of discipline which is reproduced above refers only to, Mr. Ward's conduct of leaving the invitation material in the minister's office .and' thereby failing to follow established policies/procedures. On the face of the letter that is the only allegation of wrong-doing 'relied on by Ms. Chopra. However', when asked during the examination-in-chief what caused her to issuethe letter, Ms. Chopra testified that Mr. ward "ignored established protocol and 'failed to follow standard practice and secondly, Used ~mproper language by calling the Minister'"Bob". Later during the examination, s~e claimed that Mr. Ward had also misled the Brampton Mayor's Committee and that that was a further factor she took into account. Ms. Chopra testified that she made the decision to discipline Mr. Ward and determined the ext~nt of the penalty, in consultation with Mr. McIntyre and the Human Resources staff,~ When employer counsel asked why client contact was taken away indefinitely, Ms. Chopra replied that at the time she was aware that some client groups in the South East Region 8 had made certain complaints against Mr. Ward and that an investigation of those complaints wa~ underway. She testified that the ongoing investigation was a significant factor in her decision to remove Mr. Ward's client contact indefinitely. Under cross-examination, she testified that the on-going investigation of the complaints against Mr. Ward was a key issue in Mr. McIntyre's mind at the time and that it was Mr. McIntyre who ~uggested to her that it was appropriate to remove Mr. Ward fr~m all client contact until the conclusion of investigation. During her testimony, Ms. Chopra has relied on three aspects of Mr. Ward's conduct as justifying discipline. It was alleged that (a) he failed to follow established ministry protocol-and procedure; (b) that' he used inappropriate language; and (c) that he misled the Bramptoh Mayor's Committee. We will now examine each of these allegations. Failure to follow established protocol This refers to Mr. Ward leaving the invitation material in 'the Minister's office directly. According to Ms. Chopra, established protocol requires that such material be reviewed by herself, by Mr. McIntyre, and the Deputy Minister before submission to the Minister's office. The letter of discipline claims, and Ms. Chopra also testified, that this protocol was known to Mr. Ward, and that he chose not to follow it. Mr. Ward testified that he was not aware of a protocol whereby the invitation material was supposed to go through the various levels of management~ He conceded that normally he would have submitted such material to Ms. Chopra for review. However, Mr. Ward testified that on October 3, 1989 he found out for the first time that the committee had printed invitation cards for October 31, 1989 and that he was shocked because there had been no indication that the Minister'had agreed to attend that meeting. The mayor had planned to send out the invitations after, the next 'c~'uncil meeting. Mr. Ward was quite c~ncerned that the mayor and the committee will be in a very embarrassing situation if the minister did not 'accept the invitation. Therefore, Mr. ward made up his mind' to get the invitation to the attention of the Minister and ggt his decision one way or. the other, as quickly as possible. Mr. Ward'testifi~d that he had no intention of insulting his superiors by by-passing them and that it was the urgency of the situation, which caused him to take the material to the minister directly. We are satisfied that the grievor was not aware of any established protocol which required that invitation material go through a multi-tiered review procedure. With considerable hesitation, Ms. Chopra testified that she thought the protocol was somewhere in the policy and procedure manual. However, 10 that was not produced in evidence. 'We are satisfied that there was no such procedure in any written document. Ms. Chopra also testified that she explained the protocol to all consultants during a st~ff meeting. However, under cross- examination she conceded that she was not aware if Mr. Ward was at this meeting, and indeed agreed that this meeting could have been held before Mr. Ward came to work in her office. In our view, what occurred here was this. Mr. Ward departed from his normal practice of submitting invitation material to his ~upervisor, because of his~desire to expedite the process of ministerial approval. In his judgement, he decided that the urgency of the situation (.it was October 3rd already, invitation'cards stating that the Minister will be speaking at a function on October 31 were about to be sent out; and the Minister had not yet agreed to attend) justified leaving the material in the Minister's office directly. We are satisfied that he acted in good faith, driven by his desire to avoid embarrassment to a lot of people, and that he had no intention of being disrespectful to his supervisors, Ms. ChoPra testified that in the government service, you do not cut through "red-tape" under any circumstances. As she put it, "We don't expedite in the government". While we agree that as a general rule it is necessary to follow established procedure, considering the absence of knowledge of any formal procedure and Mr. Ward's good intentions, his conduct was not culpable, and did not warrant a disciplinary response. This at most was a situation, which warranted non-disciplinary counselling, particularly considering that the gri~vor had hitherto had a discipline free record and had not received any negative performance evaluations. Use of imp.~omer languaqe The invitation summary is a form filled out by the RRC wherein he provides information about the function to which the minister is being invited and recommends whether or not the minister ought to accept. In one place, in filling this out, Mr. Ward referred to the Minister of Citizenship Mr. Robert Wong, as "Bob". Ms. Chopra testified that in the public service there is a code of behaviour which requires that an employee "accor~ proper respect to superiors." She felt that it was very disrespectful for Mr. Ward to have referred to. the Minister as "Bob" in the invitation summary, eventhough it was an internal document. She testified that "we are all instructed to refer to the Minister as ~Mr. Minister'". She testified that in her 12 years in the public servic~ she 'had never referred to a minister by first name and that she considered it serious' misconduct to do so. The grievor testified that Mr. Wong's predecessor, Mr. Gerry Phillips and the Deputy Minister Ms. Maureen O'Neill had instructed the staff to call them by 'their first names. A note was submitted in evidence wherein Ms. O'Neill addresses Mr. Ward as "Scouter" and signs off as "Maureen". It is obvious to us that Ms. Chopra has a particular view of the proper protocol for a public service employee. She is of the belief that a public servant should not cut short the usual red-tape or procedures in order to expedite matters under any circumstances. She believes in a formal relationship b~tween superiors and subordinates. We are not Batisfied that this is a view which is necessarily shared by everyone. We are satisfied that Mr. Ward meant no disrespect by referring to the Minister by'his first name. Given the uncontradicted evidence that the previous minister and the deputy minister had requested that they be addressed by first name, ~nd the absence of any contrary instructions from management, we are of th6 view that the reference to the minister as "Bob" in an internal document is not culpable conduct attracting any discipline. Misleadin~ of the BramDton Committee In concluding that Mr. Ward had misled the Brampton Mayor's Committee, MS. Chopra relied, on information she received from Mr. Frank Kovrig, a member of the committee, during a telephone conversation. She testified that she was informed by Mr. Kovrig that Mr. ward adVised the committee to 13 go ahead and print the invitations and that he will get the minister to attend. Mr. Kovrig during his testimony could not recall specifically that at any time Mr. Ward advised the committee to proceed with the printing of the invitations or assured that the minister will attend. However he surmised that the committee would not have proceeded without a verbal confirmation from Mr. Ward that the minister will attend, because the committee had appointed Mr. Ward as the contact- person with the Minister's office with the responsibility for arranging his attendance. Mr. Ward testified that while he Was the ministry contact person, the Mayor- told him that he will deal with the Minister personally and arrange for his attendance because'the Minister was a "buddy" of his. The Mayor had passed away shortly after these events. Mr. Ward insisted that he learned for the first time that October 31 had been fixed for the · event, When on October 3rd he saw the printed invitation cards. Mr. Kovrig att'empted to recall when the committee made the decision to hold the event on October 31 and to print the invitations, and when Mr. Ward may have be~omeaware of these decisions. However, it became clear that Mr. Kovrig had no clear recollection of the sequence of e~ents and during cross- 14 examination he conceded that he was having "a lot of difficulty with dates". In the result, we have no reliable evidence-which causes us to reject the grievor's evidence. We cannot conclude that he misled the committee by advising them to go ahead with the printing of the invitations or that he gave any assurance that the Minister will attend on October 31, 1989. On the contrary, Mr. Kovrig did not give us the impression that he personally or the committee as a group, felt that Mr. Ward misled them. He testified that he was aware that the Mayor knew the Minister quite well, and'that the mayor had written several, letters and called°~the Ministmr several times. The employer counsel asked Mr. Kovrig what impact this whole episode had on his regard for the Minister, the Ministry and Mr. ward. Regarding the Minister Mr. Kovrig testified "I wasn't sure. Just annoyed." Regarding the Ministry he said "I was annoyed. Not very happy. Some negative thoughts - too much red-tape, too much protocol." When asked how these events affected his ~egard for ?r. Ward, he said "I wasn't sure if it was 'his fault or someone else's. I had no information really as to what happened.'" Ms. Chopra agreed that she relied solely on information provided by Mr. Kovrig in concluding that the grievor had misled the committee. This is understandable since she would 15 not have had any independent knowledge~ of what happened between the committee, the Minister's office and Mr. Ward. Mr. Kovrig's testimony in the end is that he does not know what went wrong.. He certainly was not prepared to put the' blame on Mr. Ward. In fact he testified that even after these events he was prepared to work with Mr. Ward because he had been giving "solid advice and quidance" to the committee. He called the directorate to obtain Mr. Ward's assistance again, but was advised that he was no longer available. The evidence does not establish on a balance of probabilities the allegation that Mr. Ward misled the committee. Therefore there was no just cause for discipline on that basis. The result of the foregoing findings is that the evidence doe~ not establish any of the three grounds offered by Ms. Chopra justifying discipline. The letter of.discipline is to be removed from all files and expunged from all records. (b) The discipline 1Dtte~ dated October 23, 1989 This lette~ from Ms. Chopra to Mr. Ward reads: This is to inform you that the language you have used in the above-mentioned memo in reference to "getting clearance from the moguls who control our lives" is totally unacceptable to me. I suggest that you refrain from using such unprofessional language in the future. I also bring to your attention other previous '- incidents where you made derogatory statements regarding the Chinese community (October 10, 1989) and for which you were verbally reprimanded. i w~sh to advise you that any further incidents of unprofessional behaviour will warrant further disciplinary action. As a result of the October 10th letter, Mr. Ward was not permitted to interact with clients. Therefore, when Mr. Ward was invited to attend the wedding of a member of one of his former client groups, he felt it was necessary to obtain permission from Ms. Chopra. Hew rote the following memorandum dated October 17, 1989 to her: In light of the October 10th letter of reprimand, and in light of the Perception some decision makers in the Ministry seem to have of my skills, intellect and common sense, it would be with great fear and trepidation for my job that I would dare to accept this invitation without first getting clearance from the mogul~ who control our lives. Please let me know if the consensus of all involved is that it would be in the best interest of the directorate and the Ministry to accept this invitation. The letter of October 23rd was issued because of Mr. Ward's reference to his supervisors as "the moguls who control our lives". Ms. Chopra.testified that the reference had negative connotations and she understood that by using the term "moguls" the grievor was claiming that his supervisors were abusing their power. Ms. Chopra testified that the language used was derogatory and unprofessional. It was her 17 evidence that since Mr. Ward had previously been verbally reprimanded for use 'of inappropriate language she felt that a u~'itten reprimand was warranted. That previous incident is referred to in the letter of reprimand. Ms. Chopra ~lso testified aboUt that. During the examination-in-chief she said that on October loth she handed Mr. ward the first letter. He read it and appeared to be quite s~rpris~d. Then she said'"As he was leaving-my office he made some remarks with r~gard to "chinks". I called him back into my office, i said you have just been given a letter of reprimand and you are using unprofessional language again. ~lease refrain from doing that. I said i~ you continue I'll · take disciplinary action. To the .best of'my recollection he just listened and then he left." That ~as the extent Of Ms. Chopra's testimony on this event in direct examination. Under cross-examination Ms. Chopra testified at first that as he was leaving her office, "Mr. Ward 'mumbled' something about the Chinese". When union counsel asked "so he mumbled?" Ms. Chopra said "No. Mumble is the wrong word. He said it." She insisted that it was not possible that she did not hear Mr. Ward use the term "Chinks" or that she may have misheard what he said. She was not only sure that he used that term, but she went on to say that after he had 18 reprimanded him, Mr. Ward said "I am sorry. I will not say it again." A memorandum written by Ms. Chopra i~mediately after the incident to Mr. McIntyre was filed in evidence. It states in part that "... he made negative comments about the Chinese community. He stated that whenever he visited the minister's office, he noted the minister meeting with the Chinese community ...". The m~morandumwas writtmn in blue ink. -On the margin adjacent to the portion of the memorandum quoted, was written the word "Chinks" in black ink. Under cross-examina~ionMs. Chopra agreed that her only objection was to the alleged use. of the word '"Chinks". She agreed also that she added the' word "chinks" in the margin later the Same day after she had written the rest of the memorandum. When asked to explain why she did not say that the grievor used the word "chinks" "when she wrote the. memorandum in the first instance, her response was that she wrote the memorandum "in a rush". In all of the circumstances we cannot accept that the grievor used the word "chinks". Ms. Chopra conceded that the only inappropriate conduct on the part of the grievor was the use of the term "chinks". It is inconceivable that she will not refer to that term in writing the memorandum if at the time she was certain that the word was used. If the one and only concern she had was the use of the word "chinks", why would she not write that word when she wrote the memo? It is more likely that she subsequently reconstructed the events and came to a conclusion that the word was used. This conclusion is supported by Ms. Chcpra's initial testimony that the grievor "mumbled something about the Chinese" as he went out. We do not accept Ms. ChoDra's insistence in cross examination that the qrievor in effect admitted wrong-doing by stating that he was sorry and by promising not to'say it again. This testimony is in direct conflict with her evidence-in-chief when she said that to the best of her recollection the grievor just listened and left. Mr. Ward has worked with the Chinese community on a regular basis over the 5 years he had been employed as a RRC. Mr. whist, who had been his supervisor for the majority of that time testified that he had never heard Mr. Ward use that term. In our view the use of a derogatory and racist term like "chinks", particularly by a person holding a RRC position. would be a serious infraction justifying more than a reprimand. It may even put into question that person's suitability, to hold a RRC position in the first place. However, before we find such an.infraction we must have clear and cogent evidence. The evidence presented to us does not 20 ~ enable us to conclude on a balance of probabilities that Mr. Ward used the term "chinks". Ms. Chopra's testimony was not frank and was internally inconsistent. On balance we prefer Mr. Ward's evidence that he did not use the word "chinks", although he referred to an observation someone else had made to him that whenever that person went to the Minister's office the Minister was surrounded by Chinese people and that that was not good for the Minister's image. In the result, Ms. Chopra was not entitled to rel-y on this incident. The issue thus is whether the "~oguls" memorandum by itself justified a letter of reprimand. We agree with Ms. Chopra's reading of Mr. Ward's memorandum. It conveys by inference an imputation that Mr. Ward's supervisors, including at least Ms. Chopra and Mr. McIntyre,. who were instrumental in removing the grievor's client contact, were misusing their authority or acting in a dictatorial fashion. Mr. Ward'~ explanation'was that be was merely joking. We do not accept that. It is more likely that Mr. Ward was quite angry about receiving the October 10th letter and particularly about the removal of the client contact. We are satisfied that Mr. Ward's reference to his supervisors as "moguls who control my life" was an expression of that anger. Mr. Ward's anger is understandable. As we had found, he had acted in good faith in attempting to help the Brampton committee get out of a difficult situation. He was severely punished fo~ that. From time to time, employees may feel that they have been unfairly treated by their supervisors. They might be quite upset by that. Yet it is not proper in those circumstances to insult the supervisors in question. The grievor did not agree ~ith the-letter of October 10 and he exercised his right to grieve. This Board should not condone or encourage resort to retaliation by an aggrieved employee .... bY belittling the supervisors. In our view, that is exactly what Mr. Ward was doing by referring to his supervisors as "the moguls who control my life". That conduct was culpable. It is a form of self-help which is not to be condoned. Even when viewed as a first offence, we see no reasoh to interfere with the penalty of a written reprimand, particularly considering that Mr. Ward did not appear t~ realize or accept that use of such languag~ is inappropriate. In summary then, the first grievance of the grievor is partly allowed to the extent that we find that there was no just cause for the letter of discipline dated October 10, 1989. The grievance is dismissed as it relates to the letter of reprimand dated October 23, 1989. 22 The second Grievance re removal from RRC position The removal of Mr. Ward from his RRC position and reassignment as Multicultural Program Consultant in Toronto was effected by letter dated October 27, 1989 from Mr. Dan McIntyre, Executive Coordinator of the Directorate. That letter reads: As a result of serious complaints from client groups regarding your performance, I hav~ assessed your ability to carry out all the responsibilities of a race relations consultant with the assistance of your supervisor,-Eric Whist and an independent investigator. I have found that you are unable to perform the · duties and responsibilities of the position of race relations consultant to the satisfaction of the Directorate and some of your client groups. In light of this finding you are being' reassigned to Toronto to the position of multicultural program consultant reporting to Tom Vu in the Citizenship Development Branch. This reassignment is effective October 30, 1989. As you are being reassigned beyond 40 kilometres of your previous headquarters, you will be entitled to household relocation expenses should you wish to move. Your commuting allowance will terminate January 1, 1990. Employer counsel submits that the employer action should be viewed as a non-disciplinary re-assignment of an employee ih the exercise of an exclusive management right. On that basis, he submits that this Board has no jurisdiction to hear this grievance. Alternatively, counsel, submits that if the 23 employer action is viewed as discipline, there has been misconduct on' the part of Mr. Ward which justified such discipline. We.do not feel it is necessary to review the extensive case-law relating to the distinction between disciplinary and non-disciplinary employer action, cited to us by the parties. The employer has relied on 4 concerns as justifying its action: 1. Complaints from the Kitchener-Waterloo Committee and the Brantford Committee. 2. The allegation that .Mr..Ward misrepresented to Ms. Raj Varma that he was-a priest.. 3. Mr. Ward's alleged involvement with th~.;Ahmadiyya Movement forum contrary to his'supervisor's directions. 4. Two previous letters of discipline issued by Ms. Chopra. The employer agreed that the two letters constituted discipline, and in'turn relied on that discipline, in deciding to remove Mr. Ward from his RRC position. The employer counsel has submitted that by getting involved in the AhmadiyYa forum, Mr. Ward engaged in."insubordination" and "blatant disregard for instructions". Insubordination involves intentional conduct. Similarly, the allegation that Mr. Ward misrepresented to Ms. Varma that he was a priest 24 involves an allegation of intentional misconduct. Thus, at least 3 of the 4 grounds relied upon by~ the employe~ as justifying Mr. War4's reassignment involve an allegation of intentional misconduct. In addition some of the allegations of the K-W and Brantford committees also involve alleged intentional conduct. One consequence of the letter of discipline dated October 10 was the removal of client contact. The employer's own evidence is that this step was taken as a result of the complaints fro~ the 2 committees. Therefore that discipline was partly related to the complaints by the 2 committees. In the circumstances, we are convinced that the employer conduct constituted discipline. Accordingly, this Board has jurisdiction to entertain the grievance. The Board will now review each of the grounds relied upon by the employer. Prior disCioline: The Board has already concluded that the employer had no just cause to issue the letter of discipline dated October 10, 1989, but has upheld the letter of reprimand dated October 23,. 1989. The priest incident Ms. Raj Varma was a new member of the Brantford RR Committee. Ms. Varma testified that when she attended the meeting between Mr. Whist and the K-W Committee, she Qas not aware that the purpose was to deal with Mr. .Ward. Nevertheless,. when other individuals raised various allegations of misconduct (which we will return to later in this award) Ms. Varma related an experience she had had with Mr. Ward some l0 days earlier. In Mr. Whist's notes of the meeting it is stated that Ms. Varma told him that when she met Mr. Ward on a train Mr. Ward "intr6duced himself as a priest". Several times during his testimony'Mr. Whist referred to Mr. ~..War~ "posing as a priest". Ms. Varma testified about this allegation. In examination-in-chief she said that while on the train from Toronto to Brantford she and Mr. Ward sat next to each.other and got to talking about various things. When she mentioned that her daughter's friend went to Huron College to study theology, 'Mr. Ward stated that he also studied theology and that after he finished his theology he worked as a priest for a while, .before he joined the government. under cross-examination, Ms. Varma admitted that Mr. Ward did not introduce.himself as a priest as such, but that the topic came up during conversation. She stated that Mr. Ward stated that he was a priest and not that he i~ a priest. The following dialogue next took place under cross-examination: Q. He then said he spent some time working at the St. Pious Parish? A. He said he worked as a priest. I am not a Christian so I won't know. I don't know who is a declared priest. If he told St. Pious Parish I wouldn't remember. All I know is he said he was a priest. Q. He said he worked in St. Pious Parish and you assumed he was a priest?. A. Yes. Q. would it surpFise you if he was not a priest? A. I don't know. Q. Were you made aware ~hat he had to-apply to Rome for dispensation from vows? A. No. Q. You don't know about catholism? A. True. Q. He said he was studying to be a priest? A. All I remember is he said he finished his theology and worked as a priest, Mr. Ward denied that he had ever told Ms. Varma or anyone else that he was a priest. He testified that he told Ms. Verma that he studied to be a priest in the seminary and that after completing his theology he worked, in a Parish. 27 We are satisfied that Mr. Ward did not intend to mislead - Ms~. Varma into believing that ~e was a priest. It is clear from the evidence that Mr. Whist's belief that Mr. Ward "introduced himself as'a priest" or that he "posed as a priest" is wrong, i Ms% Varma's own testimony is that she believed Mr. Ward to be an ex-priest. Mr.'Whist testified that Mr. Ward had told him also that he had been in the Seminary studying to be a priest, but that he had never told him that he was a priest. We heard testimony from a number of people who had interacted with Mr. Ward in his 5 years in government. There was no evidence that he had told any of them that he was a priest. In the circumstances, it is hard' to understand why Mr. Ward would pick Ms. Varma alone to mislead her into believing that he had been a priest. There lis no explanation we can .think of as to what advantage Mr. Ward could hope to gain by so doing. The true situatio~ is that Mr. Ward had been studying to be a priest but before he was ordained a priest, he decided not to pursue .that vocation. He had as part of his training worked in a parish church. Ms. Varma candidly admitted that as a non-catholic she does not understand when someone is a "declared priest". Under cross-examination She also admitted that when Mr. Ward stated that he had worked in a church she assumed that he had 28 been a priest. On balance it is probable that Ms. Varma misunderstood from W~at Mr. Ward stated of his working in a parish' church, that he was a priest. To her, working in a parish equalled being a priest. On the basis of the evidence we are not able to conclude that Mr. Ward misrepresented intentionally that he was a priest. Thus no culpable conduct has been established and the employer was not entitled to rely on this incident as a justification for its decision. The Ahmadiyya Movement incident Following complaints from the Brantford RR Committee against the possible return of Mr. TWard as RRC in the region, Mr. McIntyre and Mr. Whist met.with members of that committee on September 14, 1989. Mr. 'McIn~yre assured the committee that Mr. Ward will not be involved in the region until their complaints were resolved and the committee informed of the management's decision. However, on September 19, 1989 Mr. Whist received a call from an irate committee member, Ms. Laura Bishop, who had seen a flyer advertising a Religious Founders Day Symposium organized by The Ahmadiyya Movement scheduled for October 22, 1989. The programme indicated that Mr.-Ward was scheduled to make closing remarks at this symposium. She was very critical of Mr. McIntyre and Mr. Whist because she felt that 29 they had lied by assuring that Mr. Ward will not be involved in the region. " Mr. Whist testified that Mr. Ward had been heavily involved in this annual event in the past, acting as its 9rganizer and moderator. However, at one point Mr. Whist felt that the Ahmadiyya Movement was sufficiently established that it did not need much help from the DirectOrate. Mr. Ward Was therefore instructed to reduce the time he spent on that. As a result', during the two previous years Mr. Ward was-not involved in the organizing of the symposium, bu~ acted as moderator on the day of the event. Mr. Whist testified that in 1988, he instructed.Mr. Ward that he could moderate'the 1988. event,' but that "this should be the last time". While it was part of Ms. Bishop's concern that the flyer contained a number, of inaccuracies, the evidence' is clear that Mr. Ward had no part in its preparation and did not see a flyer in advance. Under cross-examination.Mr. Whist agreed that Mr. Ward cannot be held responsible for those errors. He also agreed that"Mr. Ward had accepted the invitation in May, at a time when he believed that by October he would be back in the South-East region, and that officially, Mr. Ward remained the RRC for the South-East region throughout since he had been in Metro only temporarily on a secondment. However, Mr. Whist testified that the Directorate's management was put in a very embarrassing situation because they had assured the committee that Mr. Ward would 'not be involved in the region. He repeatedly testified that this embarrassing situation could have been:a~oided, if Mr. Ward had informed him of his intention to be involved in this event. We find that Mr. Ward is not to be held responsible for the embarrassment caused to management. The evidence is uncontradicted that while management gave specific assurances to the committee, Mr.. Ward was not informed at any time that ~his was. done. Thus, he could not have foreseen the possibility of embarrassment. Since Mr. Ward was not responsible for the errors in the flyer or for the embarrassment vis-a-vis ~he committee, the issue is whether Mr. Ward acted improperly by defying clear directions from Mr. Whist not to be involved in the Ahmadiyya movement symposium in 1989 and by failing to inform Mr. Whist that he intended to participate. CounSel for the Employer suggested that Mr. Ward was fUlly aware that he was under directions not to participate, but chose to participate anyway without informing Mr. Whist. 31 There is a conflict in the evidence in this area. Mr. Ward testified that for several years when this event came up, Mr. Whist told him that he should cut-back his i~volvement with the Ahmadiyya Movement to a bare minimum. When Mr. Ward reminded Mr. Whist of the legitimacy of the group and the importance of its activities from the Ministry's point of 'view, Mr. Whist informed him that his concern was Mr. Ward's time and not the importance of the activity. Mr. Ward vehemently denied that Mr. Whist' at any time directed him to cease a%~ involvement with the movement. According to Mr. Ward as a result of Mr. W~.ist's instructions~ in the last two years he had restricted his involvement to attending the symposium on the Sunday. .Mr. Whist agreed that his major concern was that the committee members felt that he and Mr. M~Intyre had lied by breaking the promise that Mr. Ward will not be involved in any race relations activity in the region until its complaints about him Were resolved. He agreed that Mr. Ward was not made aware of this promise and that therefore Mr. Ward 'could not. be accused of intentionally' causing embarrassment to anyone. When Mr. Whist was asked in cross- ~xamination-whether he told Mr. Ward to withdraw all contact with the Ahmadi~a event, he replied: "This was an event which stood uD Without the need for our help. It was not a priority. At first he organized ~and moderated the event. 32 Three years earlier I said you can only moderate it, Next year I said you can moderate it this year, but this will be the last time". Mr. Whist conceded ithat no direction was issued in writing. Nor was there any docmaentation of a verbal direction. Mr. Whist met with Mr. Ward on September 20, 1989, about his concern. Mr. Ward's~e~anation was that his involvement' was minor and that he put in very little time and effort. He felt he had done nothing wrong by doing that. Mr. Whist kept notes of that meeting. That. indicates that Mr. Whist confronted Mr. Ward about not informing him of his involvement, but makes no mention of failure to follow a direct order. It appears to us that if Mr. Whist felt that he had given, a clear and direct order and that Mr. Ward had defied it, that would have been. a serious concern. It would have been natural for Mr. Whist to remind Mr. Ward that he had given an order to withdraw all contact and demanded an explanation. Instead Mr. Whist's own notes indicate that his only concern was Mr. Ward's failure to advise Mr. Whist of his involvement. Mr. Ward ~was not confronted with an accusation of failure to follow an order or insubordination. Similarly, the Crichley report does not mention that there was a direct order from Mr. Whist that Mr. Ward should cease all activity with the Ahmadiyya Movement event. The allegation in %hat report is ~lso that Mr. Ward failed to inform Mr. ~%ist o~'his intended activity. During his testimony,· Mr. Whist stated several times that his major concern was'about Mr. Ward not telling him of his involvement. One would think that a blatant disregard for a direct order should cause Mr. Whist at least as much concern. His failure to confront the grievor on September 20th and the absence of any mention of a failure to fallow a direct order, suggest that at the time Mr. Whist did not feel that there had been such insubordination. Even if Mr. Whist had intended that Mr. Ward should completely withdraw from involvement in the Ahmadiyya event, we are satisfied that that intention was not made clear to Mr. Ward. Mr. Ward understood from discussions~ with Mr. Whist that his directions were to minimize his involvement and he felt that' he had done that by agreeing to attend only on the Sunday. Thus he explaihed to Mr. Whist, that his involvement was minor and that he had put in little effort and time. When asked during testimony for his reaction to this explanation, Mr. Whist's response was: "It was not minor. It gave rise to a very nasty complaint and flew in the face of our assurance that he will not be involved in the region." As noted Mr. Ward cannot be blamed for causing embarrassment to the management, becaUse he was not even' aware that management had given such an assurance. His uncontrad~cted evidence is that he reported his involvement in the Ahmadiyya event in the activity log in the Metro Toronto Region, 'which went to his supervisor there. Unfortunately, Mr. Whist had no access to those. Without doubt, if Mr. Ward had chosen to advise Mr. Whist of his plans, this situation could have been avoided. However, his failure to do so at most constitutes poor judgement on his part. For reasons earlier given, we find that there was no clear order contravened by Mr. 'Ward. Therefore, no insubordination has been established. Complaints from the Kitchner-Waterloo and Brantford Race. Relations Committees Mr. Ward's secondment to the Metro-Toronto Region was initially to end in March 1989. At that time' he was scheduled to return to his position as RRC in the South-East Region. Therefore, the contract employee, Mr. S. Yacoub, who replaced him in. the South-East Region (which included the K- W and Brantford areas), had a contract which was also to expire in March 1989. However at some point Mr. Ward's term of secondment was extended to August 11989. Mr. Yacoub's contract as RRC in the South-East Region was also extended till August to coincide with Mr. ward's new anticipated return date. It was at this stage that the management of the Directorate received a letter dated February 1, 1989'from the 35 Interim-Chair of the K-W Committee, Mr. K.S. Chatwal, in · which he strongly indicated that the committee had been pleased with Mr. Yacoub, that it had concerns with Mr. Ward's "methods and style ~f operation" and expressed the committee's dismay that Mr. Ward was due to 'return to the region. The letter stated clearly that the committee will · not find it acceptable to work with M~.~ Ward. A similar letter dated February 2'2, 1989, from the Chair of the Brantford Committee, Ms. ~vonne Wright was addressed to Mr~ McIntyre. She wrote that when the committee became. aware that Mr. Ward will be returning to the~'region, 6 members of~ the ~committee indicated that they would resign from the-committee. The letter states that these members "had very strong convictions against working' with ~scouter, due to unpleasant personal experiences they have encountered in their line of work with respect'to Scouter's actions." The Directorate's management had meetings with the two committees at which concerns about Mr. Ward were elaborated. Following the meetings with the two committees, there were a n%u~ber of letters from the committees to the Directorate's management seeking assurances that Mr. Ward will not re~urn to the Region and demanding that a decision be made soon. Some of these letters were copied to 'the Minister of Citizenship and other politicians. Of particular note is a 36 letter dated July -18, 1989 from the Chair of the Brantford Committee which states that it would be "a tragedy if a questionable person such as Scouter Ward is placed in a position of trust" and warns "Please be advised that we will fight your decision". In general,' the Directorate's response was that a decision will soon be made. The committee was qiven an assurance that Mr. Ward will have no involvement in race rglations activity in the South-East Region until the committee's complaints were resolved. Suffice it to state that at these meetings it was made clear that the committees were not prepared to work with Mr. Ward. Mr. Whist used the terms "unbelievaDle vehemence" and '!adamant" to describe the attitude of the committees. Following these meetings, Mr~ McIntyre and Mr. Whist met with the Deputy Minister, who decided that an independent investigation should be conducted of the allegations against Mr. Ward. Mr. Bruce Crichley, Manager of Human Resources with the Ministry of Tourism and Recreation, was appointed to conduct that investigation. Mr. Crichley interviewed a number of individ6als who had made allegations against Mr. Ward and also met with Mr. Ward. Following the investigation, on October 24, 1989, Mr. Crichley submitted a "Confidential Report" to Mr. McIntyre. Mr. Whist testified that in deciding'to remove Mr. Ward from his RRC position, a number of factors were taken into account. These are set out in a briefing note he,prepared ~s follows: Concerns about consultant Ward's conduct were: I) Complaints from the two committees The investigation report suggested that Consultant Ward inability to successfully work with the. two race relations committees showed a lack of skills and 'failure to meet the expectations of the Directorate to provide its services. The vehemence of these two key regional race relations organizations in refusing to ever work with Consultant Ward was noted. 2) The incidents around the,p~ies~ identification The belief of the independent investigator that Consultant Ward misrepresented himself as a priest again rai~edquestions around Consultant Ward's conduct. Th~ Directorate felt a ~isrepresentation of this kind is indeed work related. Consultants must be always mindful of the fact that members of the public-are potential clients. This is amply demonstrated in this case when it is revealed that the complainant, Raj Verma is a member of a race relations organization. 3) The Ahmadiyya Forum invitation a) Consultant Ward accepted an invitation to this event without supervisor's knowledge or approval. b) Consultant Ward acknowledged he agreed to attend this function despite the fact that 'he was not currently active in Southeast Ontario and that he knew he was-not responsible for this area. c) Consultant Ward accepted the invitation despite the fact that he knew that Directorate participation in activities with this group was a sensitive issue and that the supervisor wanted to. withdraw' direct assistance to this group. This incident suggests Consultant Ward disregarded Supervisor's directions and authority. 4) Written reprimand for approaching the Minister's Office This recent reprimand shows a lack of judgement and fundamental understanding of consultant's role and ministry processes. 5) Written reprimand on inappropriate language Again lack of judgement, tact and ability to deal-with a situation consultant did not agree with. From these concerns, the following conclusions are drawn: It is the management's conclusion that these identified incidents collectively constitute evidence that Consultant Ward does not have the judgement nor all the skills necessary to work as race relations consultant in the field. He significantly failed to serve the needs of two key client groups. He does not take adequate direction from client groups or his supervisor. He lacks the facilitating and communication skills to deal with clients and to be flexible to client's practices. Finally, there is a question regarding how he had represented himself in the field, raising the question of his credibility and integrity. 39 The Board has already considered the concerns referred to in items 2 to 5. We have upheld the written reprimand in item 5, but ~oncluded that there has been no culpable conduct on the part of Mro Ward relating to the events referred to in items 2, 3 and 4. Now we turn to an examination of the complaints by the K-W and Brantford Committees. Ki~chener-Waterloo Comg~aint This committee's concerns about Mr. Ward were related to Mr. Whist at a meeting held on February 7, 1989 and are set out. in a memorandum to file prepared by Mr. Whist as follows: During the course of the meetin~ the following concerns were made: 1. Scouter.'s manner and judgement are questionable. In the case around getting the Waterloo County Board of Education tb develop a race relations po'~Cy, it was. felt Scouter inappropriately gave positive reinforcement to the Board's efforts and failed to remain impartial or to respect the concerns of 'the community over the quality of the document and the intentions of the Board. 2. The Waterloo Regional Race Relations Council (W.R.R.R.C.) was. essentially a creation of Scouter's developed without support from the community. 3. Scouter's aims in a project are seldom clear. He doesn't listen to the community. "His community development style does not build, it is imposed". This is not just a concern.in Kitchener, Committee members have heard similar concerns in other communities. 4O 4. People have avoided Scouter because of the energy needed to work with him. An example was cited - in Kitchener Waterloo there is a well established community infrastructure that deals with a lot of issues. However, over the last two to three years the community could have used some help in the area of race relations because there have been problems. The issue is that people did not come forward to Scouter because of his manner and practices, and probably was not even aware of this dissatisfaction. The unfortunate result is that it is only now that a body such as the Kitchener Race Relations Committee is being formed when under the right conditions it ~hould have been formed three years ago. 5. Scouter is a likeable person but sometimes insensitive. He is insensitive in his use of language, (i.e., use of term' "Indian"). He tends to ~manage' activities and convey notion of ~I know - do it his way'. 6. With regards to the Ontari° Municipal · conference, Scouter sent out an invitation to the Waterloo Regional R~¢e Relations Council using the ~ddress of the Kitchener Multicultural Centre. The W.R.R.R.C. had not used this address in. two years and had not met for at least a year, if not two years. Why was such an invitation ~sent? Why did Scouter not know the state of affairs with the Committee that it was effectively moribund? 7. Scouter imposes a structure and style in his interaction with communities. Can this be changed? Does he.want to change? 8. Scouter is interested in the biggest 'bang for a buck' for the RRC which is not always to the communities' benefit. 9 An occasion was cited when Scouter has asked to speak to 15 to 18 social service representatives on Race Relations. At the end of the presentation people were incensed at his attitudes and paternalism. Another Committee representative noted she was aware of a number of social service people who were not prepared to work with Scouter. The first item deals with a race relations policy that had been prepared by the Waterloo County Board of Education. The K-W committee members met with the Board of Education to discuss the adequacy of the policy. The committee ' s complaint was'that at this meeting Mr. Ward supported a ~olicy which committee members felt was flawed and inadeqUate. This matter came to Mr. Whist's attention shortly after the event. Mr. Whist testified that Mr. Ward explained that all he was doing was give some "positive reinforcement" to the Board of Education because they were' trying to come up with a race relations poli~y. Mr. Whist testified that while giving positive reinforcement by itself was not improper, the question was whether .it was appropriate to do that at a public meeting. In his view, it was not a "good tactic" on Mr. Ward's part to have done so. Although Mr. Whist became aware of the Committee's displeasure about Mr. Ward's conduct, no action was taken at the time to either document that Mr. Ward had acted improperly or to discipline him. The committee's main dispute with the Board of Education was its plan to teach' "The Merchant of Venice" at 42 the grade 9 level. The committee members, led by Prof. Mona Zentner, objected to this becausethey felt that the teachers lacked the skills to sensitively deal with Shakespeare's portrayal of jeQs in the book. Prof. Zentner testified that the committee expected Mr. Ward to speak up against the teaching of the play, and was distressed that he did not do so. However, the evidence of Mr. Whist was that the Directorate had instructed Mr. Ward specifically that he should not take any position on this issue. Prof. Zentner testified in cross-examination that the committee was not aware of these instructions. The second allegation against Mr. Ward was that he had appointed members to the old committee 'without regard to the wishes of the community, This is not substantiated by any evidence. On the contrary, the evidence is that any. appointment of members had to be approwed by the committee. There is no evidence that Mr. Ward made any appointment without such approval. It is clear from the evidence that the new K-W committee had a poor opinion of the old committee. In thi~ comDlaint they were claiming that the old committee consisted of people personally preferred by Mr. Ward and not representative of the community. There is no evidence whatsoever to support that complaint. 43 ~ The concern expressed in item 6 is related to the allegation in item 2. Mr. Ward sent an invitation to the Ontario Municipal Conference to the old K-W committee. He testified that he addressed it to the Kitchener Multicultural Centre because he was not aware of a change of address or that the old committee was inactive. Indeed, the evidence suggests that the old committee was not completely inactive. In any event," when the'issue was raised, Mr. Ward was will.inq~ to accommodate bothi committees. We d6-not find any wrong doing on Mr. Ward's part in this matter. Item 5 alleges use of insensitive language, namely, referring to~ native people as "Indians". We were not informed of the context in which this term was used, whether he used the term ih .'addressing. a native group or in an internal ministry communication. In any event, there is no evidence to suggest that Mr. Ward used the term in a derogatory sense or with an intention to insult or upset native people. There is no evidence that Mr. Ward had ever been told by anyone, that the use of the term "Indian" to refer to native people was not a~ceptable. In the absence bf such evidence, we cannot accept the Ministry's position that Mr. Ward ought to have known that the term was inappropriate. We can take judicial notice of the fact that in Canada we still have the Indian Act in the statute books. A member of the cabinet holds the portfolio of "the Minister of Indian 44 Affairs" and we have a "Department of Indian Affairs".' While it may be that some natives may find the use of the term "Indian" unacceptable, we cannot conclude that the use of the term by itself constitutes misconduct. We deliberately avoid dealing with the allegation that Mr. Ward acted inappropriately with regard to Ms. Terri Saunders' daughter, since Mr. Whist was very clear that that allegation was not a cons~deratio~ in the employer's decision. The balance of the K-W committee's concerns ultimately amount to an attack on Mr. Ward's style in dealing with community groups. From all of the evidence, we got the impression that the committee member's felt'that Mr. Ward was not assisting the group to carry out What it wished to do. Instead he decided what must be done and imposed it on the group. In other words, the complaint was that Mr. Ward was too dominating and paternalistic when dealing with community groups. Prof. Zentner's evidence is significant in this respect. Her complaint against Mr. Ward was that while the committee was interested in dealing with specific incidents of racial discrimination, Mr. Ward "kept coming back to the structural issues". The impression we got was that Mr. Ward's interest 45 Qas not in resolving specific incidents of racial discrimination, but in developing general policy and establishing a framework or structure which can deal with race relations issues. The committee was upset because of Mr. Ward's pre-occupation with general or policy issues and his reluctance to get involved in individual cases of racial discrimination. The Brantford complaint The allegations against Mr. Ward from the Brantford Race Relations Committee were presented to the Directorate's management at two meetings held on May 17, 1989 and September 14, 1989. In minutes prepared.by Mr. WhiS~, it.is no~ed that at the May 17 meeting allegations were' levelled at Mr. Ward by the individuals named below: Ms. Lil~ Petrella: - that Mr. Ward dominated discussions and "imposed overwhelming control" that committee members felt it was the "Scouter Ward Show". - that she had heard that Mr. Ward got into a fight the previous summer while act.ing as a Marshall during a ..... multicultural festival and that Mr. Ward had beaten up two youths and had been charged. Michael F1ynn: - that Mr. Ward had exploited and abused individuals. - that he believed there was "documented proof of violence" on the part of Mr. Ward. - that Mr. Ward had been kicked out of the seminary, but went around saying he was an ex-priest. - that he believed Mr. Ward had been kicked off his cable TV show "for having too many young boys on the program". Patrice.Burke: - that some of h~r clients (she was a social worker) who were developmentally handicapped, were sexually and physically assaulted by Mr. Ward. - that Mr. Ward 'sex,.ally assaulted a young adult and broke his glasses and that the victim ended up in hospital. - that young males would stay in Mr. Ward's apartment, which became "a well known spo~ to agencY workers". - that she believed that Mr. Ward would cash the boarders' benefit cheques and financially exploit them. - that she feared exploitation may!still be occurring. - that Mr. Ward used to pick up people at the bus-stop and that some of those people had later told her that they had found a place to live - with a priest. 47 - ·that she believed ·Mr. Ward "has demonstrated the symptoms of a psychopath". Mr. Whist's minutes of the September 14, 1989 meeting with the Brantford committee records that the following allegations were made against Mr. Ward. - amplified on the allegation that Mr. Ward beat up two boys at a multicultural festival and that she had ,heard through the office grapevine that charges may have been laid against Mr. Ward. .Michael Flvnn: - that he heard young males complain of abuse.from Mr. Ward. - that he heard that Mr. Ward was saying he was a member .of St. Pious Church in Brantford, when he was not. - that a young man on social, a~sigtance was physically abused by Mr. Ward. - that Mr. Ward was "involved in a case with young twins", but that no chaFges were laid because the twins had criminal records and their credibility would not stand up in court and because they would also suffer going through the process. Patrice Burke: - that she heard stories of sexual and physical abuse of de-institutionalized men in their 20s and 30s by Mr. Ward, and that many of them ended up in hospital emergency wards. - that in one case one of her clients went to hospital "black and blue with his teeth knocked out sayinq that Scouter was the cause of this". · - that Scouter would befriend young men on the street and they would end up abused and penniless. - that she believed Mr. Ward "would take family benefits cheques of persons boarding with him". Ra9 Verma - Related the allegation that Mr. Ward misrepresented that he was a priest. This allegation has been dealt with earlier in the award. We have sec out the foregoing allegations despite Mr. Whist's testimony that that the sex and violence related allegations were not factors considere~ in deciding to re- assign Mr. Ward, He testified that those allegations were not considered since they relate to a period before Mr. Ward became an employee of the Ministry. Thus the only consideration was Ms. Petrella's allegation that Mr. Ward had been the domineering and paternalistic as a RRC. While the other allegations were not considered by the employer in making its decision, we have absolutely no doubt that those allegations were directly responsible for the Brantford committee's vehement stand against Mr. Ward's return as the region's RRC. Mr. Whist candidly admitted that he believed that those allegations played a role in the Committee's position. He further testified that he found it difficult to believe that~ these allegations, of sexual misbehaviour and violence were true. However, his position was that the truth of those 'allegations was irrelevant from the Ministry's perspective b~cause they predated Mr. Ward's employment with t~e M~n%stry> The main accusers of Mr. Ward, Mr. 'Flynn and Ms. Burke, .were~ not called to testify. · Nevertheless, the evidence clearly indicates that from the investigation undertaken by the Ministry, it was established that at least some of the allegations were not true. Yet the employer did not'inform the accusers that their allegations were false. While Mr. Whist testified that he did not believe the allegations, he did not at any time convey that to the accusers, when asked why he did not-do so Mr. Whist responded that he did not wish a confrontation with the committee members. At another point he testified that that would have served no purpose because 50 he believed the committee members would not have changed their minds about not working with l~r. Ward. When all of the evidence is considered, the only complaint substantiated against Mr. Ward, from both committees, is that he had a domineering style. He decided what has to be done and expected the committee to go along with his decision. This offended the committee members, who felt that they should be in control and should be making the decisions. Mr. Whist during his testimony described the proper role expected 'of a RRc 'in dealing, with community groups. He stated that the RRC should "lead from behind". That was the ideal. However, at another time during his testimony, Mr. Whist testified that "at times the RRC must lead and give directions. But that is one skill. He also must be flexible. It appears that the committee felt that he (Mr. Ward) was playing just one role and they were upset about it". At another point in his testimony, Mr. Whist testified that ~he RRC "has to be a catalyst in race relations issues". Mr. Whist's evidence was that unlike in Toronto in the South East region there was little race relations activity. He went on "So the RRC had to be a catalyst in initiating activity." It appears to us that what the Ministry expected was the skill of being a leader and a catalyst without being 51 seen to be 'so. Prof Zentner, in describing why the committee was so pleased with Mr. Yacoub, the contract employee, stated: "He is never a leader of the group. We have to ask him for his opinion. He stays in the background unless he is asked." .It is not clear to us whether a RRC who stays in the background and does not give an opinion unless asked, fits into the Directorate's model of a catalyst.who leads from behind. In any event, the evidence suggests that Mr. Ward was directive to a degree that the clients felt that he was dominating. Mr. Whist testified that when Mr. Ward was informed of the complaints against him he admitted that he had been directive and that it was necessary to be directive to get the work done. Under.questioning Mr~ Whist .agreed that a RRC has %o be'directive "at time~"~ We agree with Mr. Whist that Mr. Ward did not adequately walk that line between being a catalyst and a leader and not dominating the group. However · does that justify the employer's conclusion that Mr. Ward lacked the skills to be a RRC. We do not think so at all. The evidence establishes. that for over 5 years Mr. Ward has functioned as a RRC. Between 1985 and mid-1988, Mr. Whist was his direct supervisor. In the 5 years, annual performance appraisals were conducted on Mr. Ward, three of them by Mr.-Whist. The employer agrees that the appraisals were satisfactory and does not raise any performance concerns. 'Mr. Whist also 52 agreed that Mr. Ward met all performance goals that were sat. The evidence is that the South East region is the largest in the province with the greatest number of client groups. It was intended to be serviced by two RRcs, but for financial reasons was covered by Mr. Ward alone. Mr. Whist admitted that he had no doubts about the "energy and diligence" Mr. Ward put into his work, and agreed that Mr. Ward put in a substantial amount of extra-time to get the work done. He started as a contract employee and subsequently obtained a classified position through a competition. Mr. Whist recommended Mro Ward for the secondment to the Ministry of the AG, and Mr. Ward won that competition as well. Mr. Whist testified that Mr. Ward did "some goodlwork" assisting him to organize the Municipal Race Relations Conference which was a big success. Mr. Whist had no hesitation recommending Mr. Ward to fill in for a RRC position in Metro-Toronto. During his period in Toronto,there were no complaints from client groups. On the other hand, 3 client groups wrote 'to management, commending Mr. Ward's work. Mr. Hafiz-Zadeh of the Ahmadiyya Movement who was called to testify about the "flyer incident", was of the opinion that Mr. Ward gave "solid advice and guidance" to the group and was disappointed when he was told that Mr. Ward was no longer available for assistance. 53 The evidence is that only the K-W and Brantford committees found Mr. Ward unacceptable. As far as the latter com~ittee is concerned, of.all of the individuals w~o made allegations, only Ms. Petrella had eve~ worked on 'the committee while Mr. Ward was RRC in the region. She worked with Mr. Ward for 3 years and made no complaints. The other accusers, including Mr. Flynn and Ms. Burke had neger worked with Mr. Ward. There was evidence that at least one member of the K-W committee discussed with Ms. Petrella about the personal allegations of sexual misbehaviour, violence and dishonesty. While there was no specific evidence, given the close proximity of the communities of K-W and Brantford, the fact that all of the individuals were active in the race relations. field, and given that the allegations are of the most serious kind, it is likely that some or all. of the K-W committee members were aware of the stories about Mr. Ward. It is equally likely that these stories would have contributed to the "vehemence" of the two committees in deciding not to work with Mr. Ward. As far as the Brantford Committee is concerned, apart from Ms. Petrella's complaint that Mr. Ward was too domineering, the committee was driven by rumour and gossip about Mr. Ward. The allegations are extremelY' serious and involve crim%nal conduct. The employer was not provided a shred of evidence supporting any of these allegations. Nor 54 did the Board hear any evidence supporting any of the allegations. The employer's position simpiy is that these personal allegations pre-datedMr.-Ward's employment with the Ministry and as such were irrelevant. While that may be true with regard to most allegations, this is not true for others. For example, the allegation that Mr. Ward was kicked out of the cable TV show f.or having to~ many young boys on the show, relates to a period when Mr. Ward was a RRC. In fact the evidence is that Mr. Ward had approval from the directorate to do the TV show and that Mr. McIntyre has appeared on the show. We are greatly troubled by the .manner in which the employer dealt with these, allegations. The accusers were not asked to substantiate any of the allegations. For several months the grievor was not informed details of the allegations. Mr. Whist knew beyond doubt that at least some of the allegations were untrue. He knew or could easily have verified that the grievor was not kicked out f~om the TV show for having too many boys. The show was terminated because of a cut-back in funding. The Crichley investigation conclusively proved that Mr. Ward had not been charged for assaulting two male youths. Mr. Whist agreed that .the Brantford Committee members were driven by their belief in these stories. Yet no steps, were taken to advise the committee that they were under a mistaken belief, at least as far as these two specific allegations were concerned. When asked why this was not done, Mr. Whist~s response was that he believed that nothing would have caused the committee to change its mind· about not working with Mr. Ward~ From all of the evidence, and particularly from the tenor of Mr. Whist's evidence, we cannot help·concluding that Mr. Whist was intimidated by and pre-occupied with the two' committees' adamant refusal to work with Mr. Ward. It appears to us, that he concluded that no matter what' is done, the committees would not change their minds. Thus on numerous occasions Mr. Whist emphasized that the two committees were "key groups" in the region. Some of the individuals in the committees were described as "high-profile' people" in'the race relations field. The evidence establishes that the only valid concern the Directorate had as a result of the complaints of the two committees was Mr. Ward's dominating style. The evidence further suggests that even Mr, Whist did not believe that Mr. Ward lacked the skills' to be a RRC. However, he was facing two hostile community groups, who he felt were indispensable. In the result, Mr. Whist and Mr. McIntyre felt that he had to 56 decide between Mr. Ward. and the two committees. The decision was that Mr. Ward was dispensable but not the two committees. There is ample evidence to support our conclusion that the employer did not really believe that Mr. Ward lacked the required skills of a RRC. As already noted, on numerous occasions, when Mr. Whist was confronted in cross-examination about the merits of the allegations against Mr. Ward, his attitude was that it does not matter and that the fact was' that the environment had been poisoned and the committees were not willing to work with Mr. Ward. Mr. whist engaged in the following dialogue in cross-examination: Q. .If you could have arranged the 2 clients t~ have worked with Mr. Ward, he would have returned in November? A. Possibly Q. Why do you say possibly? A. OK. He would have. We are convinced that whatever concerns the employer may have had, Mr. Ward Would have been returned to the South-East region as RRC. The only reason that Was not done was, not because the employer believed that Mr. Ward lacked the skills required to be a. RRC, but because the two client groups refused to work with Mr. Ward. It must be noted that Mr. Crichley, made recommendations following his investigation. He started with the following 4 options: 57 Option Carry on with the proposed return of Mr. Ward-to the Southeast Region after October 31. Option 2 Change the regional alignment so that Mr. Ward does not have responsibility for Brantford or Kitchener- Waterloo. Option 3 Reassign him to Metro Region permanently. Option 4 Reassign him to a position that is not client service related. It is apparent that Mr. Crichley's concerns were also about the K-W ahd Brantford committees' position, on Mr. ward's return. Thus at p.21 of his report Mr. Crichley states: I am reluctant to say that Mr. Ward does not possess the skills to be a consultan~ because he has in the past and most recently in'his assignment in Metro demonstrated that he has done a good job for his clients. ~is work with the Brantford and Kitchener- W~terloo committees, however, is not consistent with either their expectations of him nor the Directorate's expectations of a Race Relations Consultant. His recommendations are as follows: Recommendations: I offer the following recommendations, taking into consideration the findings of the report, my Human Resources Management background and the interests of the Race Relations Directorate, and the Ministry' of Citizenship. 0Dtion 1 should not be a consideration. A~though I understand why Mr. Ward would like to return to the region that he lives in, to do So,would cause serious harm to everyone involved. The Race Relations Committees would refuse to work with Mr. Ward.. The Race Relations Directorate and Ministry of Citizenship would suffer a lack of credibility and possible embarrassment from any public disclosure by the committees involved. Mr. Ward would be unable to do his job in the way it is intended because of a lack of cooperation or support. from the communities concerned. Option 2 and 3 are possibilities but depend heavily on the ability of the Race Relations Directorate to support these kinds of changes from both a financial and human resources perspective. Option 4 is also a consideration,however again, a job for which he is qualified would have to be found within another part of the organization. His rights under the Collective Agreement would also have to be considered, i.e. (salary protection). Final Recommendation It is my opinion that Mr. Ward's style of operation and personal beliefs have re~ultedin his inability to work with the two Race Relations Committees involved. The skills most needed'in this type of position are those of-communication, good judgement, tact, diplomacy andthe ability to foster harmonious relationships. I tend to agree with the committee's evaluation of Mr. Ward as it relates to their Operation. In their view, he was unable to demonstrate to them that he -possessed these skills and abilities. In this regard, the Race Relations Directorate should remove Mr. Ward from any further contact with the Brantford and Kitchener-Waterloo Race Relations Committees. Mr. Ward should be advised of the inappropriate conduct and performance shortcomings. The Directorate should take the necessary action to correct the inappropriate conduct.'and assist Mr. Ward to overcome his performance shortcomings. 59 It is clear from these recommendations that Mr. Crichley has not concluded that Mr. Ward lacks the.skills to be a RRC. He sees options 2 and 3 both involving Mr. Ward in the role of a RRC with client contact as possibilities, his concern being the ability of the Directorate to implement, these options from a financial and human resources perspective. If Mr. Crichley felt that Mr. Ward lacked the skills to work effectively with client groups, he would not have seen options 2 and 3 as viable. His finaI recommendation is that "Directorate should remov~Mr. Ward from any further contact with the Brantford and Kitchener-Waterloo Race Relations Committees" and not from all client contact. It is 'also to.be noted that while Mr. Crichley rules out option 1, that is returning Mr. Ward to the South East Region, he does so because, he felt that the two groups would refuse to work with Mr. Ward. He.states that Mr. Ward will be "unable to do his job in the way it is intended" not because Mr. Ward lacked the required skills, but "because of' a lack of cooperation or support from the communities concerned". In other words, it all comes back to the vehement stance taken by the K-W and Brantford committees. Even more significant is Mr. Whist's evidence in' this regard. Employer counsel asked Mr. Whist if he considered transferring Mr. Ward to another region'as RRC, which was 6O option 3 offered by Mr. Crichley. If Mr. Whist felt that Mr. Ward lacked the skills to be a RRc, the answer would have been a clear."no". Instead, his answer was "yes. But we rejected that option for several reasons. There wasn't a logical place to transfer him. I had asked him if he would be willing to move to Toronto and he had said no. The other positions were all filled. At certain points we felt it may be a question of ability and we will have problems.whatever community he works in." In our view, that answer does not indicate a conviction on Mr. Whist's part that Mr. Ward lacked the skills to be a RRC. As already noted, Mr. Ward has dealt with numerous client groups over a period of 5 years. His performance appraisals do not indicate any concern about his skills. Mr. Whist agreed that whatever goals' were set out for him, Mr. Ward met them. He had never been formally disciplined or counselled about his work. Mr. Whist testified that he followed a management philosophy of 'putting things in a positive light and that he constantly engaged in "gentle coaching" in order to assist Mr. Ward do a better job. However, under cross-examination, Mr. Whist agreed that that was nothing more than day-to-day supervision and that Mr. Ward was not informed at any time that his level of performance was not. acceptable. Indeed, the positive performanCe appraisals and Mr. Whist's recommendation 'of Mr, ·Ward to other job postings would have conveyed to Mr. Ward that he was performing well. Mr. Whist agreed that it was in the employers' letter of October 27, 1989 (the notice of reassignment to a position with no client contact) that th~ employer informed Mr. Ward for the first time that he had no skills to perform as a RRC. In addition to Mr. Whist's concern about Mr. Ward's dominating style, he also alleged that Mr. Ward had failed to keep ~him informed of his- activity in the region. Specifically, it' was alleged that Mr. Ward failed to inform him about (a) his involvement in the Ahmadiyya Movement event and (b) ~about the K-W'committee's concerns. We have dealt with (a) above. As to the K-W committee's c~ncerns, the evidence is that the committee members did not at any time indicate to Mr. Ward that they were dissatisfied-or upset about his style or service. Employer counsel points to the fact that the committee revised Mr. Ward's description, of duties, reducing his involvement in the committee's activities, and that this Should have indicated to Mr. Ward that the committee had difficulty with.his work. We disagree. Mr. Ward testified that he felt that by re-writing his duties the committee was attempting establish an arms-length relationship with the directorate and that he did not understand that as a result of dissatisfaction with his own performance. This is not, in our view, an unreasonable, way to reason. In any event, any employee would tend to believe that he is performing satisfactorily unless he is clearly told that he is not. It is 'simply too much to expect an employee to make assumptions and deductions and almost speculate that his clients may be' unhappy with his work and to expect that employee on that basis to bring that to the attention of his supervisor's attention. Th~ evidence is that On the occasions when Mr. Ward knew that his clients were upset about him he did bring that to Mr. Whist's. attention. For example, the Board of Education race relations policy incident and the Teri Saunders incident. No action was taken against Mr. Whist on these occasions. The evidence is that RRC's ~repare daily activity logs on all of their activity. Even a telephone c~ll is recorded in this manner. These logs are then placed in the file of the particular client group. The uncontradicted evidence is that Mr. Ward followed this practice, which was the formal way of communicating the RRC's field activity. As supervisor, Mr. Whist had access to all the client files and the activity logs of the RRC. The evidence is Ghat on an average Mr. Ward sent 40 to 50 daily activity logs a week. There is no evidence that Mr. Ward was ever told that he was not communicating sufficiently with his supervisor. 63 Tothe extent thatlMr. Ward may have been too dominating in his inter-action with client groups or that he may not have communicated to the level expected by M_r 'Whist, there is not an iota of evidence suggesting that the employer's dissatisfaction, in these areas was ever brought to Mr. Ward's attention. There is no formal discipline. There is no indication of ~nacceptable performanc'e in any performance 'appraisal. There is no evidence that even informally, Mr. Ward was ever told that his performance level was unacceptable, that he lacked the skills to be an RRC or that his job was in jeopardy~ As a result, we are satisfied that Mr. Ward never had an opportunity to address any concerns the employer may have had about his performance. Mr. Whist testif-i~d that he did not believe that Mr. Whist could·"change his ways". We see no reasonable basis for such a belief. The evidence is that whenever remedial action was suggested Mr. Ward was always cooperative. For example Mr. whist testified about an incident at the Hamilton Municipal Committee. Mr. Whist's own evidence was that when it was suggested to Mr. Ward that he should upgrade his knowledge on employment equity, Mr. Ward readily agreed. Similarly when Mr. Whist was asked what 'Mr. Ward's reaction was when finally informed of the complaints against him, Mr. Whist ~9~tified: "The tone was - yes there are complaints but 64 he will go back and endeavour to do good work, that he had the skills." The Crichley report does not indicate that based on his investigation, Mr. Crichley concluded thatMr. Ward lacked the skills to function as a RRC. On the contrary, Mr. Crichley states that he is reluctant to say that. In his final 'recommendations he does not suggest thatMr. Ward cannot overcome his shortcomings, on the contrary he recommends that the Directorate "... assist Mr. Ward to overcome his performance shortcomings. From all of the evidence we did not get the impression at all that Mr. Ward was unwilling to reflect upon the complaints against' him or that he was unwilling or unable to change his ways. In summary, we find no evidence justifying a conclusion that Mr. Ward lacked the skills to perform as a RRC. To' the extent that 'he may have had some short-comings, neither the complaining client groups nor the employer brought the concerns to Mr. Ward's attention and gave him an opportunity to correct those. Indeed we are satisfied from the evidence that the employer did not itself believe that Mr. Ward lacked the skills to be a RRC and that the only reason Mr. Ward was re-assigned was because of the refusal by two client groups, who the employer viewed as key groups with high profile people, to work with Mr. Ward. As Mr. Whist candidly admitted, if there was someway the employer could have changed the position taken-by the two groups about not working with 65 Mr. Ward, we have no doubt that the employer would have returned Mr. ward to the region as scheduled. '" While this argument was not articulated and no authorities were cited, employer counsel suggested that since for whatever reason Mr. Ward is unable to work with two key client groups in the South-East Region, his employment contract has in effect been frustrated, in that he is unable ~to function effectively in the region. We do not agree. The evidence iff that Mr. Ward has functioned as a RRC for over 5 years and has dealt with numerous client groups. Other than the K-W and Brantford groups, there is nothing to suggest that there were any concerns about Mr. Ward's ability. The only available evidenCe is complimentary of his performance and service. Even within the South-East Region, the evidence is that there are numerous client groups, -including 25 to 30 large client groups. The only complaints are that from the two committees. Based on the evidence relating toMr. Ward's interaction with the 2 committees, we cannot justify a finding that Mr. Ward lacked the skills to be a RRC. We are satisfied that the Brahtford committee was to a large extent motivated as a result of unsubstantiated gossip and rumour. The evidence is that at least some members of the K-W Committee were also aware of these rumours. It is likely that they were also influenced by them. That probably explains why some persons who had never worked with Mr. Ward, such as Ms. Bishop, took such a strong position against Mr. Ward's return. To tke extent Mr. Ward had any deficiencies the employer was obligated to bring them to his attention and indicate clearly what is expected of him. It is simply not appropriate to take away an employee's job merely because two clients, albeit two key clients, refused to work with Mr. Ward. Decisions affecting an employee's r~ghts must be made by the employer. In so doing, the employer remains bound by the collective agreement. It can only discipline an employee for just cause. The refusal of the two groups, in the absence of evidence that Mr. Ward lacked the skills to work as a RRC, does not constitute just cause. There can be little doubt that the position to which Mr. Wa~d was re-assigned was markedly different from-the position he held a~ RRC. While the latter involved direct involvement in the race relations activity in the region with Constant client contact, his new position is an office job of a clerical nature with no client contact. Eventhough the wage rate remained the same, the move constituted a demotion for Mr. Ward. Moreover, it was a permanent demotion. There was no justification for such action. 67 For all of the reasons we have reviewed, we find that there was no just cause for the employer to remove Mr. Ward from his position as RRC in the South-East Region. The emplo~er has failed to establish that Mr. Ward lacked the skills to perform the duties of a RRC. The vehement position. taken by two client groups in the region cannot take away Mr. Wa~d's~rights under the collective agreement. Accordingly, the Board directs that Mr. Ward be re- assigned to the position he held as RRC of the South-East Region forthwith. The union sought reimbursement for costs incurred'by Mr. Ward in travelling between JBrantford and Toronto to work and to be paid for the hours involved in travelling. The employer made.no Submissions on this. m~netary claim. The. Board sees n6 reason not to a~ard the reimbursement as claimed, since the loss is a direct result of the employer's contravention of the collective agreement. In summary the result of this proceeding is as follows: Grievance dated October 25, 1989 (1) The letter of reprimand dated October 23, 1989 is sustained. (2) The grievance is allowed with regard to the letter of discipline dated October 10, 1989. That letter is to be removed from all files and expunged from all records. 68 GrievaD~e dated November 10, 1989 (1) The grievance is allowed. (2) The griev0r is to be returned to his former position as RRC of the South-East Region forthwith. (3) He is to be reimbursed for costs incurred in travelling between his home in Brantford and his w6rkplace in Toronto. (4) He is to be paid at his regUlar wage rate for the additional travel time incurred as a result of the employer's breach. The Board remains seized in the event the parties are unable to agree upon the proper implementation of thi~ decision. Dated this l§th day of May, 1992 at Hamilton, Ontario 'N. Dissanayake. VicerC~irperson~ ~% Member ~ "Partial Dissent" (see G. Milley Member ~ OpSEU (WARD) 1720/89 PARTIAL DISSENT I am unable to agree with my colleagues that the grievor be excused -for his "failure to follow established protocol" in the B~ampton incident. Primarily, they rely (pg) on the grievor's testimony that. he was not aware of a protocol whereby invitational material was supposed- to go through the various levels of management. He conceded that normally, he would have submitted such material to Ms. Chopra for review. Notwithstanding that the protocol was not produced in evidence, I find it less than credible that the grievor, who had worked under Ms. ~Chopra's supervision since March 1989, would not be' aware by October of her avowed disciDiined adherence to protocol and the probable consequences of fts disregard. I would not excuse his action on the basis of his desire to ex- pedite the process of ministerial approval. A potential crisis was in the making and he had to be aware that, not only he, but more significantly, Ms. Chopra as well would be open to severe criticism if' it materialized. Regardless of whether the protodoi was manualized, it became doubly important that he follow his normal procedure and submit the material to his superv~sor~ Ms. Chopra for review. Once aware of the emergency, clearly, it becomes the resDonsibilty of Ms. Chopra to decide what action to take to expedite the process. I find not credible the testimony of the grievor that Ms. Chopra was appraised of the situation the night'before and that" she had no problem" with the procedure contemplated by the grievor page 2 for the following morning. When asked by his counsel why not let Ms. Chopra deal with the minister, the grievor s.aid: "It was my responsibility to help my client... I intended to do what's best for my client" And, in cross examination when asked if it would not have been the smartest thing to phone Ms. Chopra the day before (Oct. 3) the grievor answered: No! she was not handling it,'he (the grievor) was responsible. He worked for his clients and he had told them that he would deliver the letter, not that he.would take it on. I must conclude from the grievor's own testimony that he consid- ered the Brampton Race Relations Committee to be his personal client rather than a client of the Race Relations DireCtorate. He had promised the Brampton Mayor, he said, to take the letter direct to his minister and, it appears he had no intention of' being hampered by the protocol or the "Bureaucratic procedures& of the ministry. While I am satisfied that the grievor's Purpose was to expedite the process of ministerial approval, it is likely he was well aware of the established protocol which required that invitat- ional material go first to his supervisor for review. Even though there was a need for urgency, I do not see this as a reason to disregard the normal channels, take matters into his own hands an6 go direct to the Minister. Respectfully Submitted, lley Member